Labor: The Supreme Court considers who qualifies as a supervisor under federal anti-discrimination laws

The U.S. Supreme Court heard arguments on Nov. 26, 2012, regarding who qualifies as a “supervisor” under a federal employment discrimination law. At issue during the arguments was a decision by the 7th U.S. Circuit Court of Appeals, which declared that only a person with the ability to fire or hire employees can be considered a supervisor, regardless of the person's other duties. The decision by the 7th Circuit contradicts decisions by other federal appeals courts and the Equal Employment Opportunity Commissions that define a supervisor more broadly—as a person with authority to direct daily work activities and can undertake or recommend "tangible employment decision affecting employees."

The case was brought to the Supreme Court by Maetta Vance, a catering specialist at Ball State University. Vance accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005, and sued the school under the Civil Rights Act of 1964. Vance claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that because Davis could not fire Vance, they were only “co-workers.” Moreover, because the university took corrective action, the federal judge ruled the university was not liable for Davis' actions. The 7th Circuit upheld that decision, and Vance appealed to the Supreme Court.

During arguments Justice Elena Kagan, a former professor and dean of Harvard Law School, expressed her dissatisfaction with the lower court's definition. "I don't even understand the 7th Circuit's test," Kagan said. To express her unhappiness with the 7th Circuit’s ruling, Justice Kagan presented a hypothetical in which a secretary for a college professor is subjected to "living hell" by the professor. Would the secretary, asked Kagan, who is hired not by the professor personally but the university's secretarial services, be able to sue the university under the supervisory rules under the 7th Circuit decision?

On the other hand, Chief Justice John Roberts supported the 7th Circuit’s ruling by stating that it at least made it clear who can or cannot sue: "you don't have to go through case-by-case."

Several groups filed amicus briefs because of the Supreme Court’s ruling’s possible impact on human resources. Those groups include the Chamber of Commerce of the United States, the American Council of Education, the National Partnership for Women & Families, and the Equal Employment Advisory Council.

Clearly, who qualifies as a supervisor for purposes of unlawful workplace harassment is extremely important for workers and employers alike. The Supreme Court’s ruling will affect internal employment policies and procedures, training practices, employment decisions, etc., for employers of all sizes. The Supreme Court’s decision is expected sometime this year.